HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** LPA No.1555 of 2012 (O&M) Date of Decision: 30.09.2013 **** Vijay Kumar & ORS..
.
Appellants versus Sanjeev Kumar & ORS..
.
Respondents **** CORAM: HON’BLE MR.JUSTICE SURYA KANT HON’BLE Mr.JUSTICE SURINDER GUPTA **** 1.
Whether Reporters of local papers may be allowed to see the judgment?.
2.
To be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
**** For appellants:- Mr.HS Hooda, Advocate General, Haryana with Mr.DS Nalwa, Addl.
AG Haryana; Mr.Rajiv Atma Ram, Senior Advocate; Mr.R.K.Malik, Senior Advocate; Mr.Girish Agnihotri, Senior Advocate; MesSr.Arjun Pratap Atma Ram, Nikhil Sharma, B.Jeet Sheoran, Vikram Singh, Rajesh Lamba, Ashutosh Kaushik, Dilbagh Singh, Advocates.
For private Mr.Vivek Khatri, Advocate respondents :- Mr.Ramesh Goyal, Advocate Mr.SS Dinarpur, Advocate Mr.Rajinder Singh, Advocate Mr.Sudhir Mittal, Advocate Ms.Alka Chatrath, Advocate Mr.Rajneesh Chadwal, Advocate Mr.Arun Takhi, Advocate Mr.Madan Pal, Advocate Ms.Vandana Sharma, Advocate Mr.V.D.Sharma, Advocate Mr.Jagbir Malik, Advocate Mr.Ferry Sofat, Advocate Mr.Vikrant Rana, Advocate Mr.Viney Saini, Advocate Mr.Ramesh Goyal, Advocate Mr.Arihant Goyal, Advocate Mr.Ravi Gakhar, Advocate for Mr.Jagdish Manchanda, Advocate.
Ms.Ramandeep Kaur, Advocate Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -2- Mr.Anil Malik, Advocate Mr.Surinder Singh Duhan, Advocate Mr.Ashwani Verma, Advocate Mr.Dinesh Arora, Advocate Mr.SP Chahar, Advocate Mr.Neeraj Kumar, Advocate Mr.Rajesh Sheoran, Advocate Mr.Rajender Goyal, Advocate Mr.Robin Lohan, Advocate Mr.Sandeep Singh, Advocate Mr.Vikram Singh, Advocate **** SURYA KANT, J.
(1) This order shall dispose of LPA Nos.1555, 1557, 1562, 1592, 1594, 1595, 1760, 1831 to 1839, 1841 to 1860, 1870 to 1920, 1950, 1967, 1997, 2002, 2028, 2194 of 2012; 248, 262, 303, 529, 814 of 2013 as all these appeals have arisen out of a common order dated 11.09.2012 whereby the learned Single Judge while allowing a bunch of writ petitions has quashed the selection to the post of Physical Training Instructors (PTIs) made pursuant to the Advertisement No.6/2006, the result whereof was published on 11.04.2010 and has directed the Haryana Staff Selection Commission to hold fresh selection in accordance with law.
The appeals preferred by the selected candidates, State of Haryana and the Haryana Staff Selection Commission [excluding LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of 2013].have been clubbed together as common question of law and facts are involved.
LPA No.1555 of 2012 Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -3- preferred by 1616 selected candidates, is treated as the lead case.
(2) LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of 2013 are at the instance of some of the writ-petitioner(s) they being partly dis-satisfied with the order of the learned Single Judge as the issue of ‘ineligibility’ and ‘disqualification’ of some of the selected candidates expressly raised by them have not been gone into by learned Single Judge.
In view of the commonality of the point in issue, these cross-appeals are also taken up along with the main appeals.
(3) The facts may be noticed briefly.
Vide Advertisement dated 20th July, 2006, Haryana Staff Selection Commission (in short, ‘the Commission’) invited applications for recruitment to 1983 posts of Physical Training Instructors (PTIs) out of which 940 posts were for the General category, 400 for Scheduled Castes (A&B sub-categories).534 for Backward Classes (A&B sub-categories).72 for Ex-servicemen (General) while the remaining posts were reserved for various other categories.
The required qualification was Matriculation from Haryana School Education Board or its equivalent along with “Certificate in Physical Education conducted by Haryana Education Department or an equivalent qualification recognized by the Haryana Education Department”.
and also Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -4- the knowledge of Hindi upto Matric standard.
For Ex- servicemen the prescribed qualification was Middle standard with training in Physical Education from a Military School.
The last date for submission of application form was 21st August, 2006.
(4) The advertisement also contained instructions given to candidates including the following ‘Special Instructions’:- “The prescribed essential qualification does not entitle a candidate to be called for interview.
The Commission may short list the candidates for Interview by holding a written examination or on the basis of a rationale criteria to be adopted by the Commission.
The decision of the Commission in all matters relating to the acceptance or rejection of an application, eligibility/suitability of the candidates, mode of, and criteria for selection etc.will be final and binding on the candidates.
No enquiry or correspondence will be entertained in this regard.”
.
(Emphasis applied) (5) The appellants as well as writ-petitioners/private respondents applied in response to the above-stated advertisement.
They were informed vide public notice dated 28.12.2006 that a Written Test consisting of 100 Objective Type multiple-choice questions with each question carrying two Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -5- marks, shall be held on 21.01.2007.
The public notice also stipulated that ‘minimum qualifying marks’ for General category candidates were 50%, for Scheduled Castes, Backward Classes and other reserved categories (except ESM) it were 45% and for ESM40.
“Twenty five marks were assigned for the viva voce”.(6) The appellants and the private respondents appeared in the written test held on 21.01.2007 but vide a subsequent public notice dated 01.02.2007, the Commission notified that due to receipt of several complaints with regard to malpractice and cheating committed at various examination centres, the written examination held on 21.01.2007 stood cancelled.
(7) The Commission then issued another public notice on 11.06.2008 informing the candidates that the written examination will now be held on 20.07.2008.
The selection criteria like minimum qualifying marks in the written test or viva voce as published on 28.12.2006 was kept intact.
(8) The Commission issued a public notice on 20.06.2008 cancelling the written test scheduled to be held on 20.07.2008 ‘for administrative reasons’.
(9) Thereafter yet another public notice dated 12.07.2008 was issued by the Commission informing its Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -6- decision to short-list the candidates, eight times of the advertised posts in their respective categories, for interview on the basis of essential academic qualifications mentioned in the advertisement.
(10) The short-listed candidates were to be interviewed as per the original schedule from 02.09.2008 till 17.10.2008.
(11) The Commission, however, again did not honour its decision and issued yet another notice on 31.07.2008 whereby ‘on careful reconsideration of the matter’, it decided to call all the eligible candidates, namely, those possessing the minimum essential qualification, for interview as per the revised schedule starting from the month of September, 2008.
(12) There were in all 15882 candidates who were interviewed by different Selection Committees and after about 1½ year, the result was declared on 10.04.2010 which was published on 11.04.2010.
The ‘selection criteria’ adopted by the Commission as published by it along with the final result was to the following effect:- “Criteria adopted for selection :- The criteria adopted by the Commission for making selection is given below :- 1) Academic marks 60 marks 2) Marks obtained in the viva-voce out of 30 marks Total : 90 marks.”
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Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -7- (13) Some of the unsuccessful candidates felt aggrieved and challenged the selection.
The learned Single Judge has sustained their challenge and quashed the selection, inter alia, observing that: (a) in view of ‘Special Instructions’ inserted in the advertisement, the possession of essential qualifications alone could not entitle a candidate to be called for interview; (b) the Commission having resorted to short-listing the candidates by holding written examination could not have backtracked and interviewed all the candidates possessing basic qualifications; (c) once the Commission laid down the ‘selection criteria’ of ‘written examination’ comprising 200 marks and 25 marks for viva voce, the same could not have been changed in the midst of the selection process; (d) the so-called ‘selection criteria’ published along with the result was never laid down by the ‘Commission’ as a multi-Member body as at no stage they assembled to take a decision in this regard; Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -8- (e) the criteria actually applied for the selection was a ‘single-member decision’ taken by the Chairman of Commission; (f) there was an attempt to mislead the Court by producing a decision purported to have been taken by the Commission on 03.08.2008 which was prepared only when the Court directed to produce the selection criteria evolved by the Commission; (g) the decision taken by the Chairman was in utter violation of the Government notifications dated 21.05.1971; 09.12.1997; 28.07.1998 and 21.06.2007 constituting the Commission and laying down its functions and powers as also prescribing its composition.
These notifications were issued under proviso to Article 309 of the Constitution and were statutory in character; (h) the entire selection was the handiwork of the Chairman and not of the multi-Member body.
(14) The other grounds pressed into aid by the private respondents in respect of de-merits or ineligibility of one or the other selected candidates were not gone into by the learned Single Judge and the writ petitions were allowed on the above- noticed legal issues only.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 -9- (15) The aggrieved parties have preferred these appeals in support whereof, learned Advocate General, Haryana, Sarvshri Rajiv Atma Ram, RK Malik and Girish Agnihotri, Senior Advocates and a battery of other lawyers were heard for a considerable length.
Similarly, an unrestricted time was given to counsel for the respondent/writ-petitioneRs.The original records of the Commission were summoned and have been perused.
(16) Learned Advocate General urged that:- i.
neither there are allegations of mala fide nor such allegations have been proved hence the entire selection ought not to have been set aside; ii.
the writ-petitioners who appeared for viva voce without any protest and competed for their selection but challenged the selection on failing, are estopped by their act and conduct.
The decisions in (i) Om Parkash Shukla versus Akhilesh Kumar Shukla & Ors., (1986) Suppl.
SCC285 (ii) Sanjay Kumar & ORS.versus Narinder Verma & Ors., (2006) 6 SCC467 and (iii) Pitta Naveen Kumar & ORS.versus Raja Narasaiah Zangiti & ORS.(2006) 10 SCC261were relied upon; Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 10 - iii.
in para-12 of its decision in the State of Haryana versus Subash Chander Marwaha & ORS.(1974) 3 SCC220 Supreme Court has clearly laid down that where the decision of State Government to introduce a new Rule by which appointments of the candidates who scored not less than 55% marks could be restricted, was valid as “this is essentially a matter of administrative policy…”.
and the ‘selection criteria’ also being a policy decision taken by the expert-body, the learned Single Judge need not have interfered with the same; iv.
the question that “Rules of the game which cannot be changed after the game is either commenced or played”., has been referred by the Supreme Court to a larger Bench for authoritative pronouncement in Tej Parkash Pathak & ORS.versus Rajasthan High Court & Ors., (2013) 4 SCC540 v.
in view of pronouncement in Girjesh Shrivastava & ORS.versus State of MP & Ors., (2010) 10 SCC707 no order against the selected candidates could be passed by learned Single Judge without impleading them as party and without giving an opportunity of hearing.
Another decision in Union Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 11 - of India and ORS.versus Rajesh PU Puthuvalnikathu, (2003) 7 SCC285was also relied upon to urge that even if there were some irregularities in the selection of one or a few candidates who got benefit of such irregularities, it was not justified or warranted to cancel the entire selection and deprive the other selected candidates of their right to appointment.
The allegations of lack of eligibility of some of the selected candidates were refuted and it was asserted that all of them possess Degree(s) instead of Diploma in the relevant stream which is a higher qualification, as ruled by this Court in (i) Charan Singh & ORS.versus State of Haryana & Anr., 2004 (3) RSJ611 and (ii) Manoj Kumar & ORS.versus State of Haryana & Ors., 2007 (1) SLR684 vi.
it was explained that no ‘overage’ candidate was selected as the writ-petitioners have completely overlooked the Government instructions contained in Circular No.11/97/7.10 which says that “if a J.B.T./B.Ed./M.Ed.
applicant and also the applicant who has passed his/her Classical & Vernacular examination (Hindi, Punjabi, Sanskrit/ Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 12 - Art and Craft/ Home Science/ S.V./ S.T./ P.T.I./ Tailoring TeacheRs.gets his/her name registered with an Employment Exchange within the age limit prescribed by Govt.
for fiRs.entry into Govt.
Service and becomes overage before getting regular employment his/her maximum age limit can be relaxed to the extent as required for fiRs.entry into Govt.
Service.
Accordingly, applicants who become overage will approach the Employment Exchange to enable them to get the benefit of relaxation in the maximum age limit for example the age limit for teacher/Masters has been increased from 30 years to 35 years vide Chief Secy.
Letter No.3/1/90-IGS-III dated 5-9-90 hence it is clarified that applicants who have got registered their name in the trade of Teacher/Masters before 5-9-90 after completing the age of 30 years and have not crossed the age of 35 yeaRs.they are to be considered within age limit for Govt.
Service...”
.
vii.
similarly, Government instructions circulated vide UO No.3/3/99-1GS-III dated 22.09.1999 were referred to contend that relaxation of five years in the upper age limit was admissible to the candidates Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 13 - belonging to Backward Classes also at par with Scheduled Castes candidates; viii.
it was then argued that power to prescribe the criteria for viva voce just a few days before commencement of interviews, if so necessitated or permissible under the Rules, has been approved by the Apex Court in Barot Vijay Kumar Balakrishna & ORS.versus Modh Vinay Kumar Dasrath Lal & Ors., (2011) 7 SCC308and that the allocation of marks for viva voce in the instant case in any case is consistent with the principles laid down by the Supreme Court in Anzar Ahmad versus State of Bihar & Ors., (1994) 1 SCC150 ix.
Equity – as the last rescuer, was also brought into aid of the selected candidates submitting that they are working since the year 2010 hence deserve to continue.
(17) The contentions raised by other learned senior counsel(s) on behalf of the selected candidates may also be summed up as follows:- i.
a substantial number of selected candidates were not heard by the learned Single Judge before setting aside their selection; the selected candidates were Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 14 - impleaded as party respondents by way of Civil Misc.No.17080 of 2011 which was allowed on 16.12.2011 and they were issued notice in the main case for 02.05.2012.
The Registry reported for 02.05.2012 that “1389 notices have been received/served.
53 notices have been received unserved.
320 notices have not been received either unserved or served.”
.The learned Single Judge did not deem it appropriate to effect service on the unserved selected candidates and heard the arguments and reserved judgement on 02.05.2012 itself.
The decisions of this Court in (i) Anoop Singh versus State of Haryana,2008 (2) RCR (Civil) 626; and (ii) dated 7th September, 2009 passed in RA No.332 of 2006 in CWP No.16873 of 2004 (iii) dated 20th May, 2013 in LPA No.1864 of 2012 and other connected appeals (Parminder Kaur & ORS.versus Dalbir Singh & Ors.) lay down that an order passed without notice to the persons interested, stands vitiated and cannot sustain; ii.
the only plea that the ‘selection criteria’ was changed amidst the selection process was factually incorrect and could not be raised by the writ- Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 15 - petitioners who were estopped by their acts and conduct.
The decisions of the Hon’ble Supreme Court in Dr.
G.Sarana versus University of Lucknow, (1976) 3 SCC585and of this Court in (i) Surinder Kaur & ORS.versus State of Punjab & Ors., 1995 (5) SLR579 and (ii) Baljinder Singh Teja & Anr.
versus Punjab & Haryana High Court, Chandigarh, 2008 (3) SLR598have been relied upon; iii.
the vague, evasive and sweeping allegations made against eligibility of some of the selected candidates with the sole object of getting the records summoned for holding a roving enquiry, ought not to have been entertained as ruled by the Supreme Court in Sadananda Halo and ORS.versus Momtaz Ali Sheikh & ORS.(2008) 3 SCC619 iv.
the selection has been set aside on the ground(s) like lack of competence in formulation of the ‘selection criteria’ which was neither pleaded nor urged.
The learned Single Judge ought not to have improved the case of writ-petitioners by summoning the original records and then opining that the ‘selection criteria’ was laid down by the ‘Chairman’ and not by Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 16 - the ‘Commission’.
Such a recouRs.is impermissible in law as is held in (i) Ganeshi Ram versus District Magistrate, AIR1967SC356 and (ii) BSN Joshi & Sons LTD.versus Nair Coal Services, (2006) 11 SCC548 v.
there is a mark distinction between ‘change in criteria’ and ‘change in the method of selection’ which has been overlooked by learned Single Judge.
The ‘selection criteria’ of 60 marks for basic/essential qualifications and 30 marks for viva voce adopted by the Commission in the instant case has got an implied seal of approval of this Court in Jagmal versus State of Haryana & Ors., (2007) 1 SLR177where the selection criteria comprising 50% marks for academic performance and 50% for viva voce was held to be not suffering from any arbitrariness.
The minor changes in the selection criteria, if at all, cannot have devastating effects like quashing of the selection of thousands of candidates as observed by the Apex Court in Chandra Parkash Tiwari versus Shakuntla Sukla, (2002) 6 SCC127 Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 17 - vi.
the ‘principle of ratification’ is fully attracted to the facts and circumstances of the case in hand as (a) no member of the Commission has objected to the selection by interview only; (b) all the Members have taken interview; and (c) all the Members have prepared the result.
Various judicial-precedents decisions including in (i) Parmeshwari Prasad Gupta versus Union of India, (1973) 2 SCC543 (ii) Union of India versus Sukumar Sen Gupta & Ors., (1990) Suppl.
SCC545 (iii) M/s Shankar Dass Rup Lal Aggarwal versus Governor-General-in- Council, 1951 PLR231 and (iv) SS Lamba versus Punjab State Leather Development Corporation, 1994 (4) SCT192have been relied upon to say that ‘ratification’ can be by actual implementation or by conduct and it will have retrospective effect from the date the original order was passed; vii.
the Supreme Court in (i) AA Calton versus Director of Education, (1983) 3 SCC33 and (ii) NT Devin Katti etc.versus Karnataka Public Service Commission & ORS.(1992) 2 SLR378has laid down that the selection process starts with the Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 18 - issuance of ‘advertisement’.
The ‘selection criteria’ relied upon by the writ-petitioners was also not formulated prior thereto, hence the so-called original criteria as well as the revised one both were evolved during the ‘couRs.of selection’ only; viii.
the factual pleas on ‘age limit’ of selected candidates, ‘recognition’ of their ‘academic qualifications’, ‘genuineness’ of the academic certificates, ‘equivalence’ of the basic or essential qualifications etc., were raised by the writ- petitioners only to open the Pandora’s box full of disputed facts which could neither be proved nor decided in exercise of writ jurisdiction; ix.
the qualifications possessed by the selected candidates are duly recognized by the University Grants Commission and since the State Government or its agencies have no role to play in this regard, the unfounded allegations of accepting un- recognised qualifications are totally false and baseless.
Two decisions of this Court in (i) Charan Singh & ORS.versus State of Haryana, 2004(3) RSJ611 and (ii) Manoj Kumar & ORS.versus State of Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 19 - Haryana & Ors., 2007(1) SLR684 were cited in the aid of this contention.
(18) We may now take precise note of the submissions made on behalf of private respondents/writ-petitioners in support of the view taken by the learned Single Judge.
It was urged that:- i.
the selected candidates were impleaded as party respondents in most of the writ petitions and repeated efforts were made to serve them.
In fact, hundreds of selected candidates were duly served even before 14.07.2011 as is evident from the contents of the order passed on that date in CWP No.2613 of 2011 and other connected matteRs.the relevant part whereof reads as follows:- “Written statement on behalf of respondent No.2 filed in CWP No.2613 of 2011 in Court today, is taken on record.
Following respondents have been served:- 3 to 6, 8 to 10, 13 to 17, 19, 21, 23 to 27, 29 to 32, 34, 35, 37 to 43, 48 to 50, 53 to 58, 60 to 63, 65 to 69, 74 to 76, 78, 81, 87, 94, 102, 103, 127, 132, 134, 138, 143 to 145, 164, 176 to 178, 182 to 185, 189 to 195, 204, 207, 213, 215 to 217, 227, 232, 239, 240, 242 to 244, 246, 249, 254 to 258, 305 and 309.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 20 - Following respondents have been served through their relations, which shall be deemed to be proper service.
18, 20, 22, 28, 45, 52, 72, 77, 79, 80, 92, 95, 96, 101, 106, 117, 120, 121, 123, 124, 128, 130, 131, 135, 140, 172, 173, 183, 187, 205, 208 to 212, 218 to 220, 231, 233 to 238, 245, 247, 248, 250, 252 and 253.
Notices issued to respondent Nos.12, 46, 47, 73, 93, 122, 125, 126, 181, 214, 221 and 222 received back unserved due to wrong or incomplete addresses.
Counsel for the petitioners may furnish complete and correct addresses of these respondents.
Notices issued to the following respondents have not been received back served or otherwise:- 7, 11, 36, 44, 51, 59, 70, 82 to 86, 88 to 91, 98 to 101, 104, 105, 107 to 111, 119, 129, 134, 136, 137, 139, 141, 142, 146 to 163, 165 to 171, 174, 175, 179, 180, 186, 188, 196 to 203, 206, 223 to 226, 228 to 230, 241, 246, 259 to 304, 306 to 308 and 310.
Notice issued to respondent No.97 has been received back with the report ` he is dead'.
Counsel for the petitioners to take necessary steps for impleading his L.Rs.It is noticed that large number of writ petitions have been filed to challenge the selection of PTI.
The factual issue may be different in these petitions, but primary issue relates to the mode and manner of selection.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 21 - Counsel for the parties agree that the service to the un-served respondents be dispensed with for motion hearing.
If required, such respondents may be served subsequently.
Mr.Rathee is requested to complete the proceedings in this petition, which is taken as a lead case.
Mr.Rathee would also make an endeavour to complete the proceedings in as many cases as possible, so that submissions in these cases can be heard.
Counsel for the respective parties in these writ petitions would be at liberty to make their submissions on the date fixed.
Adjourned to 12.10.2011.
In the meantime, the served respondents may complete the proceedings.”
.
(Emphasis applied) ii.
the writ petitioners thereafter applied to effect service on the rest of the selected candidates through substituted service for which public notice was duly published in the daily ‘The Tribune’ on 21.03.2012, well in advance before the next date of hearing on 02.05.2012.
The public notice unambiguously clarified that if the selected candidates fail to appear, the case “will be heard and decided in their absence”.Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 22 - iii.
in a case where the number of selected candidates is unduly large, they could be impleaded in a representative capacity also and such impleadment will be a substantial compliance of principles of natural justice as held by Supreme Court in Prabodh Verma & ORS.versus State of UP & Ors., (1984) 4 SCC251 iv.
otherwise also, the failure of the Court in not hearing a party before passing an adveRs.order, is not an incurable defect as effective remedies like review petition, Letters Patent Appeal and petition under Article 136 before the Apex Court are very much available to the affected party as observed by Supreme Court in State of Punjab & ORS.versus Satnam Kaur & Ors., 2006(1) RSJ290 v.
moreover, when enormous malpractices are committed or the procedure adopted in the selection process flagrantly offends Articles 14 & 16 of the Constitution, no notice is required to be issued to the beneficiaries of illegal largesse.
The Supreme Court decisions in (i) Biswa Ranjan Sahoo & ORS.versus Sushanta Kumar Dinda & Ors., (1996) 5 SCC365and (ii) Union of India & ORS.vs.O.Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 23 - Chakradhar, (2002) 3 SCC146have been referred to in this regard; vi.
the learned Single Judge has not decided the case on the basis of allegations made against individual selected candidates.
The selection has been set aside on legal principles based upon the administrative decisions of the Commission or its Chairman.
They were duly heard.
Nothing could be contributed by the selected candidates to explain internal functioning of the Commission, hence no prejudice has been caused to them.
In fact, the findings on the mal-functioning of the Commission could be returned even in the absence of pleadings and only on perusal of the official record of the Commission which was duly summoned.
[Ref.
Surya Dev Rai versus Ram Chander Rai & Ors., (2003) 6 SCC675; vii.
the writ-petitioners have specifically challenged the selection broadly on two grounds, namely, (a) the Commission cannot change the ‘criteria’ mid-stream; and (b) the changed ‘criteria’ adopted by the Commission was totally arbitrary and open to misuse.
The learned Single Judge found that the Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 24 - criteria of selection was illegally changed not by the Commission but by its Chairman; viii.
the plea of ‘ratification’ of changed ‘criteria’ is totally farce and baseless for the reasons that (a) the Commission as a public authority is duty-bound to act in accordance with rules, regulations and byelaws which do not vest any power in the Chairman to lay down the ‘selection criteria’ on his own; (b) Clause (d) of Para-6 of the Government Notification dated 21.06.2007 mandates that it is the ‘Commission’ who shall devise the mode of selection and fix the criteria for selection; (c) there is no ‘power of delegation’ under the statutory Notifications entrusting functions and duties to the Commission; (d) there was no authorization by other members of the Commission in favour of the Chairman to change the criteria; and (e) the action of the Chairman was void ab initio to which the principle of ‘ratification’ does not apply.
Reliance has been placed on the decisions in (i) Marathwada University versus Seshrao Balwant Rao Chavan, (1989) 3 SCC132 (ii) Haryana Seeds Development Corporation versus Shri J.Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 25 - Aggarwal, (1989) 1 SLR381 and (iii) Darshan Lal versus State of Haryana, (1999) 1 RSJ607 ix.
the principle of estoppel cannot be invoked against the writ petitioners as the changed ‘criteria’ was never notified till the date of publication of the selection result.
The writ petitioners appeared for viva voce on the assumption that the selection criteria as notified earlier would be followed.
Moreover, in a case like this where provisions of subordinate legislations have been violated, estoppel cannot be applied against law.
Reliance was placed on (i) ITC Bhadrachalam Paper Board versus Mandal Revenue Officer, A.P.(1996) 6 SCC634 and (ii) Delhi-Assam Roadways Corporation LTD.versus Haryana Urban Development Authority, (2008) 3 Recent Civil Reports 389; x.
the change in criteria due to increase in viva voce marks from 25 out of 225 marks to 30 out of 90 marks has severely prejudiced a number of writ petitioners who could not be selected; xi.
the order passed by the Hon’ble Supreme Court in Tej Parkash Pathak’s case (supra).referring the matter to a larger Bench is distinguishable as the Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 26 - reference pertains to the short-listing of candidates on the basis of higher merit; xii.
the selection criteria was changed by the Chairman with mala fide intention to adjust the near and dear ones of affluent persons.
Even the learned Single Judge apprehended the tampering with or manipulation in the records and, therefore, directed to keep photocopies of the record produced in Court in a sealed cover; xiii.
the impugned selection made solely on the basis of ‘interview’ without following any reasonable or relevant parameters with reference to qualifications, experience, curricular and sports activities etc., is neither fair and just nor does it inspire any confidence.
The Division Bench decision of this Court in Babita Rani versus Punjabi University, Patiala & Ors., 2012 (2) SLR524was cited to support the plea; xiv.
the learned Single Judge ought to have gone into the allegations made against individual candidates also as it would have peeled through the false plea of selecting eligible and suitable candidates only.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 27 - (19) Let the relevant facts of the case be recapitulated before we dwell upon the rival contentions raised on behalf of the parties.
(20) The advertisement (Annexure P1) contained ‘Special Instructions’ according to which “the Commission may short-list the candidates for interview by holding a written examination or on the basis of a rationale criteria…”.It was thus within the discretion of the Commission to evolve some fair and just criteria for short-listing the candidates, if it so wanted.
The Commission indisputably took a conscious decision to short-list the candidates through a written examination consisting of 200 marks which was held on 21st January, 2007.
The notice (Annexure P2) categorically mentioned that “keeping in view the large number of applications, the Haryana Staff Selection Commission has decided to hold the written examination as per schedule given below…”.The public notice further specified that written test shall consist of “100 objective type multiple choice questions….and each question will carry two marks.
The candidates will have to secure the minimum qualifying marks in the written test…”.
i.e.General Category – 50%, SC/BC – 45%, ESM – 40% and DESM/Sportspersons – as per their categories as General, SC/BC.
The notice also specified that “Viva-voce will be of 25 Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 28 - marks”.It was then mentioned that “as per law laid down by the Hon’ble Apex Court, candidates equal to three times of the number of vacancies will be called for interview based on their performance in the written test.
The total marks obtained in the written test and viva-voce will determine the merit of the candidates in their respective categories.”
.(Emphasis applied) (21) The written-test was, however, scrapped vide public notice dated 01.02.2007 and was decided to be held afresh on 20.07.2008, though it was cancelled again and instead vide another public notice dated 12.07.2008, the Commission decided to short-list candidates, eight-times in number of the advertised posts in their respective categories, on the basis of essential academic qualifications.
(22) There was thus a definite and conscious decision taken by the ‘Commission’ to select the candidates on the basis of a written test and viva voce which was otherwise highly desirable keeping in view the fact that over twenty thousand candidates had applied.
The Commission did not stick to its guns and the second method of short-listing the candidates on the basis of their academic performance was also not followed.
It went ahead to interview all the candidates who had applied and declared the final result.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 29 - Did there exist valid reasons to scrap the written test held on 01.02.2007?.
01.02.2007?.
(23) The original record comprising four files with ‘notings’ and ‘decisions’ taken with respect to the written examination/short-listing of the candidates produced before us reveal, in no uncertain terMs.that the decision to select candidates by way of ‘written examination’ and ‘viva voce’ was taken by the ‘Commission’.
After holding the written examination on 21.01.2007, the Office put up the following Note before the Chairman of Commission on 01.02.2007:- “The Haryana Staff Selection Commission got the written examination conducted through the district administration Kaithal and Jind for the posts of PTI and DPE on 21.1.2007 (Sunday) from 10.00 a.m.to 11.15 a.m.and 2.00 p.m.to 3.15 p.m, respectively, against Advt.No.6/2006, Cat.No.23 & 18, respectively.
Nodal Officer-cum-SDM, Jind vide his letter No.1560-61/Steno, dated 22.1.2007 and the Centre Superintendent of O.P.Jain Sr.Sec.School, Kaithal vide letter dated 21.1.2007 have reported the following irregularities in respect of aforesaid tests:- i) CRK College, Jind:- Ms.Raj Bala d/o Shri Lal Chand after the examination for the post of PTI was over has taken away booklet No.12588 with her for which the Centre Superintendent has lodged an FIR Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 30 - No.43 under Section 406 IPC with P.S, Jind.
ii) Jat.Sr.Sec.School, Jind:- One candidate bearing Roll No.4100 for the post of DPE threw out question booklet including OMR sheet at 2.20 p.m.out of window for which an FIR No.45 under section 406/120-B IPC with PS City, Jind has been got registered by the Centre Superintendent.
iii) Govt.
College, Jind:- One candidate bearing Roll No.13726 for the post of PTI was red-handed by the Invigilator of the Centre while using mobile phone for which the Centre Superintendent has registered an FIR No.46 has been under section 419 of IPC with P.S.City, Jind.
iv) S.D.Sr.Sec.School, Jind:- The question booklet of the candidate bearing Roll No.9161 for the post of PTI was found less in number for which the Centre Superintendent has got registered an FIR with the Police.
v) Happy Sr.Sec.School, Jind:- One candidate bearing Roll No.17731 for the post of PTI threw out question booklet including OMR sheet out of window for which an FIR No.42 under section 406 IPC with P.S.City, Jind has been got registered by the Centre Superintendent.
vi) O.P.Jain Sr.Sec.School, Kaithal:- One incident of snatching of booklet No/Roll No.4751 by an unidentified person taken Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 31 - place for the post of PTI for which an FIR No.43 has been lodged with PS, Kaithal.
It is also worthwhile to mention here that in a Press News has also published in the Dainik Jagran of dated 22.1.2007 under the heading “Ab Munnabhai Banenge P.T.I.20 hazar me bika S.M.S.”
.In this newspaper it has been indicated that at Jind and Kaithal after the commencement of the examination the question papers for the posts of PTI and DPE were leaked out and that the answers of the question papers were sent to the candidates through S.M.S.The mobile phones were used at all the centres openly and frequently.
The question booklets were also thrown out from the examination centres by the miscreants.
In view of the aforesaid reports relating to the examinations of PTI and DPE, it is quite clear that the leakage of papers has taken place at Jind and Kaithal immediately even at the beginning of the examination.
Under these circumstances no option is left out with the Commission but to cancel the written examination for the posts of PTI and DPE held on 21.1.2007.
Therefore, the matter is placed before the Commission to take a final view in the matter.”
.
(Emphasis applied by us) Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 32 - (24) The above-reproduced Note was ‘approved’ by the Chairman who further directed that “members of the Commission may see and sign.
Notification may be issued.”
.On that very day, six Members of the Commission signed the above-stated Note.
The written examination was then scrapped.
(25) The next date of the written examination was notified and intimation to all the concerned quarters was sent.
However, Superintendent Recruitment-I of the Commission put up a typed Note dated 30.06.2008 to the following effect:- “W/Chairman has ordered that the written test for the post of DPE, Art & Craft Teacher and PTI, Education Department, Haryana against Advt.
No.6/2006, Cat.No.18, 22 & 23 which have been fixed for 13.7.2008 at Ambala and on 20.7.2008 at Karnal and Rewari may be cancelled on administrative reasons and the Roll Nos.for the examinations if not issued, be withheld.
SS has told that Roll Nos.have not yet been issued.
Accordingly, Public Notice is placed below for the approval.”
.
(Emphasis applied) (26) On the same date the Chairman approved the Note as also the notice to be published for cancellation of the examination.
The “administrative reasons”.
for cancellation of Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 33 - the proposed written examination are conspicuously missing in the Note of the Superintendent as also ‘approval note’ of the Chairman.
This time the Chairman did not deem it necessary to ask other Members of the Commission to “see”.
and “sign”.
– at least for the sake of formality.
(27) We are of the considered view that the reasons assigned in the Office Note dated 01.02.2007 for scrapping the written test held on 21.01.2007 are totally inadequate to justify the action from any angle.
The reports sent by Sub Divisional Magistrate or Centre Superintendent clearly identified the four or five candidates who indulged in unfair or unlawful means and took action against them.
These reports do not even distantly suggest any ‘leakage’ of the question-paper which was objective type to be attempted on OMR sheets.
An unauthenticated news item, without enquiring or investigating its contents, was accepted as the gospel truth, completely overlooking the fact when more than fifteen thousand candidates have peacefully taken the test, how could it be cancelled for the misdemeanour of 4-5 identified wrongdoers?.
(28) The writ-petitioners appears to have not exaggerated in alleging that the reports mentioned in the Office Note dated 01.02.2007 were a ploy to hold off the selection which was to be largely dependent upon merit in the written Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 34 - examination.
The subsequent events instead give credence to their allegations.
(29) File No.3 (Sr.No.1/251/2008-II) starts with an Office Note which on translation reads that “the brief facts of this case are as follows.
The Secretary discussed the matter with worthy Chairman and worthy Chairman has issued oral directions that in respect of advertisement No.6/2006, Category No.22 of Art & Craft Teachers and Category No.23 of PTIs Education Department, Advertisement No.10/2007…., the applicants (candidates) are required to be short-listed and called for interview.
Accordingly, short-listing for the following posts has been done as per the percentage of marks required by the candidates as per their respective categories…”.This Note was endorsed by the Secretary and ‘approved’ by the Chairman on the same date i.e.10.07.2008.
No other Member of the Commission has seen or signed this decision.
(30) The original record contained in File No.4 (Sr.No.1/242/2008-IS) further reveals that the Chairman on 11.07.2008 approved the notice to be published in the newspapers with details of category-wise percentage of marks of short-listing based upon academic performance of the candidates.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 35 - (31) The afore-mentioned File at Page-6 contains another Office Note dated 31.07.2008, the relevant extracts whereof on translation read to say – “…in addition, some of the candidates stage protest in front of residence of worthy Chief Minister against the notice dated 11.07.2008 regarding short-listing of the candidates for the posts of PTIs and Art & Craft TeacheRs.On re-examination of the application forMs.it has been noticed that only 5000 candidates have been excluded from short- listing… hence the matter is put up before the Commission with a request that keeping in view the resentment of the candidates, the Commission may re-consider its decision…”.The Chairman on 31.07.2008 itself “approved”.
the proposal at ‘A’ and directed to “call all eligible candidates”.No other Member of the Commission is a party to this decision as well.
(32) The other important Noting is contained at page-28 of the above-stated File where the Office put up the proposal before the Chairman to constitute Committees to interview the candidates and that Note was also approved by the Chairman.
The last Office Noting approved by the Chairman is dated 04.10.2008 for the allocation of candidates for their interview to different Interview Committees.
The last page of the File contains various Office Notes upto 17.10.2008.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 36 - (33) None of these files even casually talks of any meeting of the Commission as a multi-Member body held on 03.08.2008 or any decision taken therein.
It is quite queer as to when and how the ‘Commission’ met without an agenda or office proposal and took decision dated 03.08.2008 on a single ‘stray sheet’.
Does it mean that the Commission to whom the solemn duty to protect the fundamental right of thousands of aspirants, as guaranteed under Article 16 of the Constitution, has been entrusted runs its day-to-day affairs on random pieces of papers?.
(34) The journey starting from cancellation of the written test upto the decision to call all the candidates for interviews was successfully treaded by the Chairman all by himself without taking any Member of the Commission alongside.
The concept of collective wisdom of a multi-Member body was thus completely detoured.
The definite and conscious decision once taken by the Commission has been systematically deviated apparently to give safe passage to hundreds of candidates with poor academic profile who could not have been otherwise short- listed but have now made to the final selection due to the benevolence of highly inflated marks awarded to them in the viva voce.
We may now explain the reasons to draw this inference.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 37 - (35) As per the ‘selection criteria’ purportedly laid down on 03.08.2008, there were 60 marks reserved for ‘Basic’ and ‘Essential’ qualifications (i.e.30 each) which were to be awarded on the basis of “0.30 of the percentage of marks obtained”.There were 30 marks for viva voce to be awarded as per “the knowledge of subject, communication skill, general knowledge, general awareness and intelligence”.(36) The plain analysis of the criteria unfolds that unless a candidate has got 100% marks in the ‘basic qualifications’ and ‘essential qualifications’, he could not have secured 60 out of 60 marks allocated for Academic qualifications.
On a random scanning of the final Result-sheets, we find that there were about 1496 candidates who got highest marks for Academic qualifications ranging between 40 to 48.74 marks.
Most of these candidates have been awarded just 7 to 9 marks in the viva voce.
As against it, there are hundreds of selected candidates who have been awarded 20 to 27 out of 30 marks in the viva voce to ensure that they out-class the academically- bright candidates.
Such a mathematically accurate device could not have been applied unless the marks of academic/essential qualifications of the candidates were known at the time of allocation of marks for viva voce.
For example, Roll No.005117 got 48.74 marks for Academic qualifications Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 38 - and only 7 marks in viva voce i.e.55.74.
Roll No.001451 got 29.74 marks for ‘Academic’ qualifications and 27 in viva voce with a total of 56.74.
There are ‘n’ number of such like examples.
It cannot be a mere co-incidence that 90% of the meritorious candidates in Academics, performed so ‘poorly’ in viva voce that they could not secure even 10 marks out of the 30 marks or that the brilliance got configurated only in the average candidates possessing bare eligibility.
(37) Thus, even accepting the appellants’ plea that ‘selection criteria’ or ‘mode of selection’ can be altered mid- stream to short-list the candidates with higher merit, here is a case where the alterations have been designed with the sole object of downgrading and not upgrading the standards of selection to public employment.
Was the Chairman competent to take policy decisions like ‘selection criteria’ or ‘mode of selection’ ?.
(38) It is an admitted fact that the Commission (earlier known as ‘Subordinate Services Selection Board’) is a creation of the Notification dated 28th January, 1970 issued under proviso to Article 309 of the Constitution of India.
The terms and conditions of service of the Members and its functions find mention in that Notification.
Learned Single Judge has referred to relevant clause(s) of the Notification to explain that Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 39 - the Board (now Commission) is a multi-Member body.
Vide subsequent Notification dated 28th July, 1998, the ‘Board’ was re-named as ‘Commission’.
Para 6(d) of the original Notification was also substituted and the amended clause reads as follows:- “(iv) in paragraph 6, for clause (d).the following clause shall be substituted and shall be deemed to have been substituted with effect from 10th January, 2006, namely :- “(d) methods of recruitment and the principles to be followed in making appointments to the Group B, Group C and Group D posts under the State Government.
The Commission shall devise the mode of selection and fix the criteria for selection of posts for which requisition is sent to it by a department or an office, as it may deem appropriate and the criteria for the selection of posts fixed earlier by the Board/Commission shall be deemed to have been fixed under this clause.”
.
(Emphasis applied) (39) The Commission owes its existence to the Notification dated 28.01.1970 as modified from time to time by subsequent Notifications issued under proviso to Article 309 of the Constitution.
These Notifications are statutory in character Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 40 - and have not been superseded by any principal legislation.
Under these Notifications, no power exercisable by the ‘Commission’ can be delegated to its Chairman nor any enabling provision to this effect has been pointed out.
There is no decision of the Commission also delegating its functions to the Chairman.
(40) Since the decisions regarding ‘method of recruitment’, ‘mode of selection’ and the ‘criteria for selection’, are required to be taken by the ‘Commission’ alone, the Chairman could not have usurped those powers and assumed the role of ‘Commission’.
The fact that instead of defending his single-member decisions, the Chairman finally took shelter behind the so-called decision of the ‘Commission’ dated 03.08.2008 before the learned Single Judge, also reinforces our conclusion that the Chairman was incompetent to take one decision after the other.
(41) It is unfortunate that instead of reversing his unlawful decisions, taken by side-tracking eight other Members (as it was a nine-Member body since 21.06.2007).the Chairman involved those other Members in a mock-drill and flashed a surprise on the learned Single Judge by producing the magical ‘single loose sheet’ of their purported decision dated 03.08.2008 laying down the ‘criteria for selection’.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 41 - (42) We have also perused the decision dated 03.08.2008 produced in a sealed envelope.
We firmly affirm the findings returned by the learned Single Judge to discard the same.
We say so for the reasons that (i) various administrative decisions whether taken by the Commission as a multi-Member body (only one such decision found in the Files) or by the Chairman contained in the Files produced before us, are preceded by an ‘Office Note’ or ‘proposal’ and are invariably forwarded by the Secretary of the Commission; (ii) the original record of decisions taken by the Chairman in the last week of September, 2008 or in fiRs.week of October, 2008 do not even whisper about any meeting of the Commission held on 03.08.2008 or the decision taken therein; and (iii) the unusual manner in which the ‘loose sheet’ has been prepared casts a serious doubt on its genuineness.
The so-called decision dated 03.08.2008 was thus apparently contrived to defeat the cause of the writ-petitioners and to mislead the learned Single Judge, who has rightly held that it was only when he directed to produce the criteria of selection that this ‘loose sheet’ “was prepared and produced in Court”.Ratification (43) We may now deal with the plea of ‘ratification’ heavily banked upon by the appellants.
Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 42 - (44) The expression “ratification”.
according to Black’s Law Dictionary (Ninth Edition) means “confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done…”.It has been further illustrated saying that “this sense includes action taken by the legislature to make binding a treaty negotiated by the executive”.The act of ‘ratification’ by the competent authority must acknowledge the previous decision taken by a person who was otherwise incompetent to take such decision, and thereafter it must consciously approve such invalid decision.
In Punjab University versus VN Tripathi, (2001) 8 SCC179 the Registrar of the University was not a stranger to the legal proceedings rather Section 21 of the Punjab University Act, 1947 says that he shall represent the University in all legal proceedings.
The Senate of the University vide Resolution dated 29.09.1991 expressly stated that “the action taken by the Registrar/Vice Chancellor in cases where suits had already been filed or appeals preferred by them stood ratified”.(45) In Jugraj Singh & Anr.
versus Jaswant Singh & Anr., (1970) 2 SCC386 the second Power of Attorney expressly stated that the fiRs.Power of Attorney was defective and was being ratified.
The illegality was thus cured from the date it had taken place.
In Parmeshwari Parsad Gupta’s Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 43 - case (supra).the Resolution passed by the Board of Directors of the Company without notice to one of its Directors though was found to be invalid but it was held that the decision taken vide that Resolution could be ratified in a regularly constituted meeting of the Board.
The other decisions relied upon by the appellants also reiterate that ratification can cure the defect from the date it occurred.
(46) The above-noticed plea, in our considered view, is not available in the instant case, for the reason that in its so- called decision dated 03.08.2008, the Commission has neither acknowledged any previous illegal decision of its Chairman laying down the ‘selection criteria’ nor has it ratified such a decision.
The act of ratification has to acknowledge the previous decision of an incompetent authority and then only can it be ratified.
What was insisted before the learned Single Judge and reiterated before us is that it was the Commission, as a multi-Member body, who laid down the ‘selection criteria’ which the Interview Committees followed.
Had it been so, where does the question of any ratification arise?.
We thus find no merit in the unfounded contention.
Estoppel (47) Adverting to the plea of estoppel pressed against the writ-petitioners on the premise that they having participated in Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 44 - the selection process could not turn around and make wild allegations against the functioning of the Commission.
There can indeed be no quarrel on the legal principles re-stated in Om Parkash Shukla’s case (supra) and catena of other decisions that the candidates who appeared in the examination or participated in the selection process on being unsuccessful, cannot be permitted to question the validity of examination or of its selection criteria and they shall indeed be estopped by their act or conduct from raising such issues.
(48) The afore-stated exposition of law, however, has no bearing on the facts of the case in hand.
The criteria which was notified before the commencement of the selection process was admittedly not followed and what has been followed was never notified till the declaration of the final result.
How the unsuccessful candidates would come to know that the marks for viva voce stood drastically changed to 30 out of 90 instead of 25 out of 225 till the result was declared?.
(49) The selection criteria which saw the light of the day along with declaration of the selection result could be assailed by the unsuccessful candidates only after it was made public.
Non- Non-observance of principles of natural justice (50) This takes us to another contentious issue of alleged denial of reasonable opportunity of hearing to selected Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 45 - candidates by the learned Single Judge.
It goes without saying that no order prejudicial to the interest of a person can be passed by an administrative, quasi-judicial or judicial forum without hearing such person.
The principle of audi alteram partem is neither a ritual to be essentially performed even if not needed nor can it be an empty formality, if mandated.
In the instant case, though the selected candidates were unduly large in number yet the writ petitioners impleaded them and many of them were served even before 14.07.2011 whereas learned Single Judge heard the arguments and reserved judgement on 02.05.2012.
Some of the selected candidates filed their reply also as noticed by learned Single Judge.
All of them were duly served through a public notice published on 21.03.2012.
They had thus ample opportunity to assist the learned Single Judge on the legal issues on which the selection has been faulted.
The learned Single Judge has not commented upon the merits, de-merits or eligibility of any selected candidate for which counter-affidavit of such candidate could be necessitated.
The twin questions considered by the learned Single Judge pertained to the competence of Chairman of the Commission to lay down the criteria as well as the validity of the selection criteria purportedly laid down by the Commission.
The assistance of selected candidates on both of these issues Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 46 - was supplementary and ancillary as the principal respondent was the Commission.
Yet the learned Single Judge gave adequate opportunity to the selected candidates as well.
The plea that they have been condemned unheard is thus totally baseless and contrary to record.
(51) Similarly, the half-hearted contention that no roving enquiry could be made or that the learned Single Judge has quashed the selection on the grounds never pleaded by the writ-petitioners are also to be noticed and rejected.
Once the selection criteria disclosed on 11.04.2010 was expressly challenged, the learned Single Judge in his endeavour to do justice to the parties, was well within his jurisdictional competence to summon the records and having found that the functioning of a multi-Member body stood completely hijacked by the Chairman, rightly annulled the ex facie arbitrary and illegal selection.
(52) It is only a feeble attempt made by the appellants to circumscribe the jurisdictional powers of the learned Single Judge as a writ Court under Article 226 of the Constitution.
Suffice it to observe that a writ petition cannot be thrown out only on the ground that the facts, not even in the knowledge of a writ-petitioner and to which he had no access also, have not been explicitly pleaded.
Once the writ court, on perusal of the Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 47 - summoned record, is satisfied that the fundamental rights of a petitioner have been violated, it is the bounden duty of the Court to pass suitable order to protect such rights and/or to compel the enforcement of the legal duty by the respondent(s).(53) In all fairness and keeping in view the fact that some of the writ petitioners have also preferred LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of 2013 on the plea that the learned Single Judge ought to have gone into the allegations made against individual selected candidates, we called upon the writ-petitioners to tabulate such allegations and supply the same to the Commission as well as the selected candidates, who in turn, have also given their respective response(s) to those allegations.
Learned counsel for the parties were heard in support and against these allegations so that, if need be, the same could be decided on merits.
However, in view of our findings on the legal issues, we do not deem it necessary to deal with individual allegations but cannot refrain from observing that the Commission and the State Government must observe due care and caution in entertaining the applications or accepting the qualifications relied upon by the applicants.
Why the Education Department was in such a great hurry or overly anxious to give appointment to the selected candidates with doubtful academic credentials, is beyond anyone’s Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 48 - comprehension.
The proper and desired couRs.would have been to verify the genuineness of certificates and credentials and then offer appointment.
(54) For the reasons afore-stated, we uphold the decision of the learned Single Judge and consequently :- (i) LPA Nos.1841 & 1903 of 2012 filed by the Haryana Staff Selection Commission are dismissed with cost of Rs.50,000/- each to be deposited with the High Court Legal Services Committee within a period of one month; (ii) LPA No.1562, 1831 to 1839, 1842 to 1855, 1879 to 1902, 1904 to 1917, 1997, 2002, 2028 of 2012; 248 & 262 of 2013 jointly filed by the State of Haryana and the Haryana Staff Selection Commission are dismissed with cost of Rs.10,000/- in each case to be deposited with the High Court Legal Services Committee within one month; (iii) LPA Nos.1555, 1557, 1592, 1594, 1856 to 1860, 1870 to 1878, 1918 to 1920, 1950 of 2012; 529 of 2013 filed by the selected candidates are dismissed with cost of Rs.10,000/- each to be deposited in the High Court Lawyer Welfare Fund within one month; Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document LPA No.1555 of 2012 - 49 - (iv) LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of 2013 filed by the writ-petitioners are disposed of in the light of the observations made in para-53 of this Court; (55) Photostat copies of the four files containing original notings and decisions taken by the Commission or its Chairman from time to time, the decision dated 03.08.2008 have been retained and shall be kept as a part of the judicial record.
The original record be returned to the Commission under receipt.
(56) Ordered accordingly.
Dasti.
(Surya Kant) Judge 30.09.2013 (Surinder Gupta ) vishal shonkar Judge Vishal V201310.04 14:48 I attest to the accuracy and integrity of this document